In Pendleton v Derbyshire County Council and the Governing Body of Glebe Junior School (UKEAT/0238/15), the Employment Appeal Tribunal (EAT) had to decide whether it was indirect religious discrimination to dismiss a teacher for refusing to leave her husband after his conviction for sex offences.

Facts

Mrs Pendleton was a teacher at Glebe Junior School. She had a number of years' exemplary service and was also a committed and practising Anglican Christian. She was dismissed after she opted to remain with her husband (the headmaster of another local school) after he had been convicted of making indecent images of children and voyeurism, for which he was sentenced to 10 months' imprisonment. There was no suggestion that Mrs Pendleton had known of these matters before her husband's arrest.

Mrs Pendleton brought a claim for unfair dismissal and indirect discrimination because of religion or belief, arguing that her Christian faith meant that she regarded her marriage vows as sacrosanct, having been made in the presence of God and as an expression of her religious faith.

Employment tribunal decision

The employment tribunal (ET) upheld her claim of unfair dismissal. Her employer had not been able to make good either reason relied on for her dismissal (conduct or some other substantial reason justifying her dismissal), had pre-judged the decision, carried out an inadequate investigation, failed to consider mitigation or alternatives to dismissal, and reached a decision outside the band of reasonable responses.

However the ET rejected her indirect discrimination claim. While the ET found her employer had applied a PCP (provision, criterion or practice) in the form of a policy of dismissing those who chose not to end a relationship with a person convicted of making indecent images of children and voyeurism, it did not consider particular disadvantage had been shown. The ET took the view that Mrs Pendleton would have been dismissed irrespective of whether she held a religious belief in the sanctity of her marriage vows.

It was acknowledged by the ET that if Mrs Pendleton had been able to show disadvantage, the ET would (in the alternative) have found dismissal was not a proportionate means of achieving the legitimate aim of protecting and safeguarding school children; her employer had failed to produce any evidence to establish this.

Mrs Pendleton appealed against the ET's finding on disadvantage and her employer cross-appealed on the finding of a PCP and on justification.

EAT decision

The EAT allowed the appeal and dismissed the cross-appeal, finding that the claim of indirect religious belief discrimination had been established.

In addressing the issue of whether there was a PCP, the EAT found that the dismissal had been the application of a policy or practice. Although it acknowledged that the facts of the case were unusual, the ET's conclusion was permissible given the evidence of the dismissing Governor that anyone would have been treated in the same way in these circumstances and the ET's findings as to her employer's closed mind to any alternative other than dismissal. In the EAT's view these factors were sufficient to establish evidence of a policy or practice.

On the issue of disadvantage, the EAT concluded the ET had failed to focus on the PCP's comparative effect of its application to the relevant group. The fact that the application of the PCP would put others at a disadvantage (ie anyone in a longstanding, loving and committed relationship with someone discovered to have committed the offences in question and being faced with a choice between continuing in that relationship or their career) did not prevent there being a 'particular' disadvantage for those sharing Mrs Pendleton's belief (ie who would also feel under pressure to act contrary to their religious belief in the sacrosanct nature of their marriage vows).

The EAT concluded that the PCP identified was intrinsically liable to disadvantage a group sharing Mrs Pendleton's belief (ie with the relevant protected characteristic) and had subjected her to that disadvantage. In the circumstances, the ET decision would be set aside.

With regard to justification, the EAT concluded that the ET did have proper regard to this in finding that a legitimate aim had been made out. However, turning to the question whether the dismissal of Mrs Pendleton was a proportionate means of achieving that aim, the EAT agreed with the ET that her employer had brought forward no evidence on this point. There had been no consideration of alternatives to dismissal and there was no further evidence to establish why dismissal had been a proportionate course in these circumstances.

Comment

This case is useful in helping to clarify the circumstances when an ET might consider that a one-off disciplinary decision amounts to a PCP.

The case also highlights the importance of correctly identifying the comparator groups for the purposes of identifying whether there was group disadvantage, in this case focussing on the particular disadvantage of Mrs Pendleton and those who shared in the protected characteristic (a religious belief in the sanctity of marriage vows).